Memorandum on the 1926 Imperial Conference by the Department of External Affairs
(Copy)

The right to make individual treaties without the conjoint signature of a British representative was definitely established by Canada in the Halibut Treaty, signed with the U.S. on the 2nd March 1923. The main object of the Treaty was to establish a close season for Halibut in the Bering Sea.

   The Canadian Plenipotentiary, Mr. Lapointe, held his full powers from the British Crown and acted as the representative of the British Crown, though it was set out that the treaty was being made 'in respect of our Dominion of Canada'. As a bilateral treaty made by a single Dominion on the one side and a foreign power on the other, it presented no real constitutional difficulty to the Foreign Office. The British Crown acted through a single representative who happened to be a Canadian, and the application of the Treaty was restricted to a special part of the territories of the Crown. Furthermore, there is no doubt that in the British view the advice to issue the full powers came from the 'Imperial Government', and the diplomatic unity of the Empire was consequently preserved. The change was therefore merely a change in machinery and it cannot be said that anything in the shape of a definitely new constitutional right was exercised by Canada in making the Halibut Treaty.

    If the right to make treaties on an equal footing with independent States were formally acknowledged to the Dominions, their position in collective or multilateral treaties would be quite different from what it is at present. In making an individual treaty the Dominion may appear to be exercising a prerogative of independence while in reality it is only exercising one of the prerogatives of the Crown which in Great Britain have become the privilege of the people to exercise through its Ministers but which as far as the Dominions are concerned have remained the special privilege of the British Cabinet to be exercised only on its advice.

   In multilateral treaties it is much more difficult to maintain this appearance of the exercise of external sovereignty by the Dominions. The British Crown must preserve its oneness in order that the diplomatic unity (which is a euphemism for 'internationally recognised unit') may not suffer a breach. Hence we have the series of procedures employed to prevent the Dominions exercising independent sovereignty in treaties. One is the curious system of indenting first adopted at the Treaty of Versailles and maintained ever since. The British Empire signs first and the Dominions follow thus:

Another is the insertion of an article such as the following which appears in all conventions since 1921 and most recently in the Slavery Convention made at Geneva during the September Assembly 1926-Art. 9: 'At the time of signature or ratification or accession, any High Contracting Party may declare that its acceptance of the present convention does not bind some or all of the territories placed under its sovereignty, jurisdiction, protection, suzerainty or tutelage in respect of all or any provisions of the Convention; it may subsequently accede separately on behalf of any one of them or in respect of any provision to which any one of them is not a party'. This type of declaration is logically followed by the reservation which Viscount Cecil, like other British signatories since 1921, added to his signature of this Convention: 'I declare that my signature does not bind India or any British Dominion which is a separate member of the League of Nations and does not separately sign or adhere to the Convention'. The only conclusion that can be drawn from such a reservation is that the Dominions in the view of the British being placed under the sovereignty, protection, or suzerainty of the High Contracting Party, who is the King acting on the advice of his British Ministers, are as such covered as to their exclusion or inclusion by the signature of the British Plenipotentiary and that therefore the separate signing or abstention from signing by the Dominions is merely an incidental act explanatory of the scope of the British signature. In other words, the King can only be (in the British view) a High Contracting Party once in one and the same convention and he acts through his British Plenipotentiary.

   No convention or treaty involving several parties has ever been signed by a Dominion without the assumption of external sovereignty which would otherwise follow from that act being nullified by the reservation of the British Plenipotentiary. The theory of the unity of the Imperial Crown as illustrated in this procedure makes it impossible for the Dominions to obtain international recognition. To secure this the prerogative of treaty making must be admitted to have become as much the privilege of the people in each Dominion as it is of the people of Great Britain. The formal admission of this constitutional right may be difficult to secure but its realisation may be hastened by setting up a new machinery of approach to the King. This machinery can take the form of a King's Office in London or the Governor-General endowed with different functions may serve the purpose. The latter alternative will be considered in the second part of this Memorandum. A King's Office in London would have the following advantages:

    Sir Austen Chamberlain stated in the House of Commons on the 18th November, 1925, that the British Government did not think it possible to discuss questions of such importance and covering so wide a field as the Treaty of Locarno by Telegraph and Despatch. It appeared to the British Government, he said, that personal consultation was necessary on questions of so wide a character. He further stated that it was the desire of His Majesty's Government before the scheme of the Locarno Pact took shape to get into conference with the Dominions, but that it had proved impossible to do so.

    In view of this statement, it is reasonable to conclude that the British will suggest a new system of consultation at the forthcoming Conference. No possible system can obviate the ultimate necessity of going to the Parliaments of the Dominions for sanction for any action to be taken in which they may become involved. Mr. MacKenzie King's resolution passed in the Canadian House, June 21, 1926, stating that 'before the Government of Canada advise the ratification of any treaty involving military and economic sanctions, the approval of the Parliament of Canada should be secured', and the President's resolution of 26th February 1926 in the Dáil stating that 'Saorstát Éireann cannot be committed to or bound by any agreement with an external government without the prior sanction of the Dáil' safeguard the independence of Canada and the Saorstát vis à vis of Great Britain, but they can have no effect on the attitude of Foreign Countries in the event of war. To meet that aspect of the situation there must be an understanding that the King will either make a general explicit declaration of war on the advice of all the Dominion Governments or that he will make a separate declaration, on behalf of each, on being advised to do so. The present theory that the King can plunge all the Dominions into war, however little they may participate, on the advice of his British Ministers, alone strikes at the whole basis of democratic principles and deprives the Dominions of any real independence of attitude in any system of consultation.